JP Van Schalkwyk Attorneys v Botha N.O and Another (65348/2020) [2021] ZAGPPHC 189 (23 March 2021)

JP Van Schalkwyk Attorneys v Botha N.O and Another (65348/2020) [2021] ZAGPPHC 189 (23 March 2021)

The court found that it had jurisdiction to hear the application as the trust was registered with the Master, Pretoria, and the administration of the trust remained under that office despite changes in asset location. The trust was factually insolvent, with liabilities exceeding the value of its assets, and had committed acts of insolvency by failing to pay debts and attempting to dispose of its principal asset. The deed of suretyship was valid and enforceable, and the trustees’ conduct, including failure to maintain the required number of trustees and attempts to benefit personally from trust assets, justified their removal under the Trust Property Control Act. The applicant established...

Citation
[2021] ZAGPPHC 189
Parties
Applicant: JP Van Schalkwyk Attorneys; Respondent: Jan Jonathan Durand Botha N.O
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 March 2021
Case Number
65348/2020
Procedural Posture
Urgent Application / Provisional Sequestration and Removal of Trustees
Outcome
Provisional sequestration of the Durand Botha Family Trust granted; Messrs Botha (snr) and (jnr) removed as trustees; costs of sequestration reserved; costs of removal application awarded against respondents personally.
Judges
N Davis
Legal Topics
Sequestration of Trust, Trustee Removal, Trust Property Control Act, Act of Insolvency, Suretyship Validity, Jurisdiction of High Court
Civil Procedure Land and Property Commercial and Corporate Sequestration of Trust Trustee Removal Trust Property Control Act Act of Insolvency Suretyship Validity +1 more

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Parties

JP Van Schalkwyk Attorneys

Applicant

Jan Jonathan Durand Botha N.O

Respondent

Procedural Posture

Urgent Application / Provisional Sequestration and Removal of Trustees

Legal Issues

  1. 1 Whether the court has jurisdiction to hear the sequestration application against the trust.
  2. 2 Whether the trust is factually or commercially insolvent and has committed acts of insolvency.
  3. 3 Whether the deed of suretyship furnished by the trust is valid and enforceable.

Ratio Decidendi

The court found that it had jurisdiction to hear the application as the trust was registered with the Master, Pretoria, and the administration of the trust remained under that office despite changes in asset location. The trust was factually insolvent, with liabilities exceeding the value of its assets, and had committed acts of insolvency by failing to pay debts and attempting to dispose of its principal asset. The deed of suretyship was valid and enforceable, and the trustees’ conduct, including failure to maintain the required number of trustees and attempts to benefit personally from trust assets, justified their removal under the Trust Property Control Act. The applicant established...

Court Disposition

Provisional sequestration of the Durand Botha Family Trust granted; Messrs Botha (snr) and (jnr) removed as trustees; costs of sequestration reserved; costs of removal application awarded against respondents personally.

Orders

  • The Durand Botha Family Trust is provisionally sequestrated with return day 20 July 2021 for interested parties to show cause why it should not be finally sequestrated.
  • Jan Jonathan Durand Botha (snr) and Jan Jonathan Durand Botha (jnr) are removed as trustees of the Durand Botha Family Trust.